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How private are Facebook comments?

BY Katy Marshall
Employment Law & HR
BG Purple

As social media use becomes ever more ubiquitous, employers struggle to police their employees use (or misuse) of Facebook, twitter and other forums. 

Not unsurprisingly, employers may occasionally overstep their authority in taking action against employees for what they do or say outside work.  

A recent example of this, widely reported in the media, was the case of Smith v Trafford Housing Trust.  In this case, the Trust demoted Mr Smith after a colleague complained about comments on Mr Smith’s Facebook page where he objected to gay people marrying in church.  In the Trust’s views, Mr Smith’s actions were relevant to the workplace as 45 of his Facebook friends were colleagues. 

The High Court disagreed with the Trust.  While acknowledging that the precise facts of each case would be relevant, the Court found that the comments made were ‘moderate’, made outside work hours in a personal capacity and did not associate the Trust with any of the views held.  It was a matter of personal choice whether or not Mr Smith’s work colleagues were Facebook friends. 

In the context of this case, the decision is undoubtedly the correct one.  Some sympathy might be extended to the employer here, who undoubtedly felt that, as they had a detailed policy on equal opportunities and social media misuse, they were acting within their rights in disciplining Mr Smith.   A more sober assessment however might have suggested to the Trust that they were being particularly heavy handed in this case.  Had Mr Smith directed his comments against a specific employee, or associated his employer with his views, the outcome may well have been different.  

A reminder to employers that it is not enough to have a well crafted social media policy (though it certainly helps) but the application of this policy must be reasonable.

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